You may not know it, but you have already given your consent to submit to such a test if you’ve been arrested for DUI or DWAI. Like many other states, Colorado has an “express consent” law. This means that by getting behind the wheel and driving on a road or highway in the state of Colorado, you have consented to blood, breath or chemical testing if you have been validly arrested for suspicion of DUI or DWAI. A valid arrest is one where the officer had probable cause to believe you were driving under the influence because of how you were driving, what you said, and how he or she believes you performed in any field sobriety test (FST).
No Express Consent to Pre-Arrest Testing
But that express consent you didn’t know you gave to post-arrest testing does not include consent to any pre-arrest testing - including a breathalyzer test - during the traffic stop prior to arrest if you are over 21-years old. If you are under 21, you must submit to a pre-arrest breath test if the officer reasonably suspects that they have consumed any alcohol. Otherwise, you are well within your rights to refuse to any field sobriety test prior to your arrest without any penalties or consequences for refusing to do so. The results of any FST as well as your refusal to consent to such testing cannot be used as evidence against you in court.
Refusing (or revoking your consent to) a post-arrest blood, breath, or chemical test in Colorado, however, comes with some serious consequences, including:
- Automatic suspension of your Colorado driver's license for one year (though you can apply for – but by no means are guaranteed – a reinstatement of driving privileges after two months).
- Designation as a Colorado “persistent drunk driver,” even if it is your first DUI arrest.
- Participation in a mandatory alcohol and drug education and treatment program.
- An ignition interlock device on your vehicle for at least one year following restoration of driving privileges, and
- Carrying SR-22 insurance even if you are found not guilty of DUI.
Additionally, your refusal to submit to post-arrest testing can be used against you at trial as evidence of your guilt.
Of course, if you do submit to the testing and the results show that your BAC was over the applicable legal limit, those results can be used against you as well.
So, you can refuse to submit to blood, breath, or chemical testing after your arrest, but since you have no legal right to do so, you will suffer the aforementioned penalties for that refusal.
Whether you should submit to the test, and which test you should submit to, depends on the facts of your particular case. That is one reason it is so important to contact an experienced Colorado DUI defense attorney as soon as possible after your arrest.